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HomeMy WebLinkAboutZOA 93-2 CITY OF PALM DESERT 1994 i ORDINANCE NO. 736 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING AN AMENDMENT TO THE ZONING ORDINANCE TEXT TO ADD A DEFINITION OF "FAST FOOD RESTAURANT" . CASE NO. ZOA 93-2 WHEREAS, the City Council of the City of Palm Desert, California, did on the 13th day of January, 1994, hold a duly noticed public hearing to consider the amendment to the zoning ordinance as described above; and i WHEREAS, the Planning Commission, by adoption of Resolution No. 1633, has recommended approval; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89 , " in that the director of community development has determined the amendment to be a class 5 categorical exemption for the purposes of CEQA; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said city council did find the following facts and reasons to exist to approve the zoning ordinance text amendment: j1 . That the zoning ordinance amendment is consistent with the objectives of the zoning ordinance. 2 . That the zoning ordinance amendment is consistent with the adopted general plan and affected specific plans . 3. That the zoning ordinance amendment would better serve the public health, safety, and general welfare than the current regulations . I NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm Desert, as follows : I 1 . That the above recitations are true and correct and constitute the consideration of the council in this case. 2. That it does hereby approve a Zoning Ordinance Text Amendment, as provided in the attached exhibit, labeled Exhibit "A" , to amend Municipal Code Section 25 . 04 . 684 . 3 . The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Palm Desert Post, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty ( 30) days after its adoption. T�7 . ORDINANCE NO. 736 ' PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this 27th day of January 1994, by the following vote, to wit: AYES: CRITES, KELLY, SNYDER, WILSON NOES : NONE ABSENT: BENSON ABSTAIN: NONE ROY WIL , Mayor ' ATT 57 r /SHEILA R. GILLIGAN, , Oity Clerk City of Palm Desert, California 2 ORDINANCE NO. 736 EXHIBIT "A" Section 1 That section 25 . 04 . 684 be added to define a fast food restaurant as follows : 25 . 04 . 684 "Restaurant, fast food" Fast food restaurant is a restaurant that sells food products primarily over a counter rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . Delivered food items shall not be counted in the "take out" or "to go" category. i I i i I i I i 3 r CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT TRANSMITTAL LETTER I . TO: Honorable Mayor and City Council II . REQUEST: Consideration of an amendment to the zoning ordinance to establish a definition for "fast food restaurants" . III. APPLICANT: City of Palm Desert IV. CASE NO: ZOA 93-2 V. DATE: January 13, 1994 VI . CONTENTS: A. Staff Recommendation B. Discussion C. Draft Ordinance No. D. Planning Commission Minutes involving ZOA 93-2 E. Planning Commission Resolution No. 1633 F. Planning Commission Staff Report dated December 7 , 1993 G. Related maps and/or exhibits. ---------------------------------------------------------------------- A. STAFF RECOMMENDATION: Waive further reading and pass Ordinance No. to second reading. B. DISCUSSION: 1 . Background During the processing of the Desert Springs Marketplace shopping center at Country Club Drive and Cook Street a condition was placed on the precise plan that "fast food restaurants" not be permitted. 2 . Analysis "Fast food restaurants" are not presently defined in the ordinance. During August and September 1993, staff approached city council with a proposed definition which was revised slightly but generally endorsed. At that time staff was directed to process the definition as an amendment to the ordinance so as to codify "fast food restaurant" . STAFF REPORT ZOA 93-2 JANUARY 13,. 1994 It is proposed that a "fast food restaurant" be defined as follows : "A fast food restaurant is a restaurant that sells food products primarily over a counter rather than by . waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . Delivered food items shall not be counted in the "take-out" or "to go" category. " December 7, 1993 planning commission held a public hearing and adopted its Resolution No. 1633 recommending approval of the above definition to the city council . One person spoke at the planning commission hearing. Mr. Niewald, a resident of Desert Falls Country Club, spoke in opposition to a Domino' s or a definition which would permit that type of use. The planning commission adopted its Resolution No. 1633 recommending approval of a definition of "fast food restaurant" on a 3-1 vote with Chairman Spiegel voting nay. 3 . CEQA Review An amendment to a section of the zoning ordinance is a class 5 categorical exemption for the purposes of CEQA. No further documentation is necessary. Prepared by: Reviewed and Approved by: l— SRS/tm 2 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING AN AMENDMENT TO THE ZONING ORDINANCE TEXT TO ADD A DEFINITION OF "FAST FOOD RESTAURANT" . CASE NO. ZOA 93-2 WHEREAS, the City Council of the City of Palm Desert, California, did on the 13th day of January, 1994, hold a duly noticed public hearing to consider the amendment to the zoning ordinance as described above; and WHEREAS, the Planning Commission, by adoption of Resolution No. 1633, has recommended approval; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined the amendment to be a class 5 categorical exemption for the purposes of CEQA; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said city council did find the following facts and reasons to exist to approve the zoning ordinance text amendment: 1 . That the zoning ordinance amendment is consistent with the objectives of the zoning ordinance. 2 . That the zoning ordinance amendment is consistent with the adopted general plan and affected specific plans . 3 . That the zoning ordinance amendment would better serve the public health, safety, and general welfare than the current regulations . NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm Desert, as follows : 1 . That the above recitations are true and correct and constitute the consideration of the council in this case. 2 . That it does hereby approve a Zoning Ordinance Text Amendment, as provided in the attached exhibit, labeled Exhibit "A" , to amend Municipal Code Section 25. 04 . 684 . 3 . The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Palm Desert Post, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. , ORDINANCE NO. PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this day of , 1994, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: S. ROY WILSON, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California 2 ORDINANCE NO. EXHIBIT "A" Section 1 That section 25 . 04 . 684 be added to define a fast food restaurant as follows : 25 . 04 . 684 "Restaurant, fast food" Fast food restaurant is a restaurant that sells food products primarily over a counter rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . Delivered food items shall not be counted in the "take out" or "to go" category. 3 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 Chairman Spiegel noted that there was concern on the part of the residents . Mr. Winklepleck concurred. He indicated that letters had been received and he had spoken to approximately 30 people about it. Chairman Spiegel said that he assumed the developer between now and the January 4 meeting would attempt to get together with the people that live there. Mr. Winklepleck said that was staff ' s suggestion to him that he request a continuance to speak with the homeowners associations to clarify as many things as possible. Chairman Spiegel asked for a motion to continue. Action: Moved by Commissioner Whitlock, seconded by Commissioner Beaty, to continue TT 27698 to January 4 , 1994 by minute motion. Carried 4-0. C. Case No. ZOA 93-2 - CITY OF PALM DESERT, Applicant Request for consideration of an amendment to the zoning ordinance to establish a definition for "fast food restaurants" . Mr. Smith explained that during the processing of the commercial complex known as Desert Springs Marketplace at Country Club and Cook Street, a condition was placed that there would not be any fast food restaurants. The city did not have a definition of fast food restaurant so that was what was being done now. He read the definition and explained that when staff started having questions coming up as to what a fast food restaurant was, staff went to council and asked them their intent; they said to come back with a definition and this was what they came up with. Staff recommended that planning commission recommend approval of the definition to city council and codify the definition for fast food restaurants. Chairman Spiegel noted that the last sentence said delivered food items would not be counted in the take out or to go category. He indicated that Domino' s Pizza would not be considered fast food because they deliver most of their food; Mr. Smith said that was correct. The question was raised because of a chinese restaurant that wanted to locate in the center. Mr. Diaz felt the concern with the shopping center wasn't the type of people the food was delivered to, but the type of people who might go and get the food. Mr. Smith said 7 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 the city did not want a loitering problem. Chairman Spiegel questioned the ability of staff to monitor restaurants for the 40% requirement. Chairman Spiegel opened the public testimony and asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal. MR. LEONARD NEWALD, a resident of Desert Falls Country Club, said he thought the definition of fast foods was resolved by city council . Chairman Spiegel indicated this was the definition that was resolved, but it had to go through the planning commission and then back to council. This definition was exactly what was resolved by city council. Mr. Newald said it was not quite the way he understood it and objected to a Domino' s in that center--he felt fast food was where there were no waitresses there to serve customers . He felt more study was needed on the definition. Mr. Diaz stated that this matter would be before the city council because it was a zoning ordinance amendment and if Mr. Newald provided his address, staff would see to it that he received notice of the council meeting. A definition was needed if the city was going to disallow fast food restaurants . The particular issues raised warranted some study and would be reviewed between now and the council meeting. Mr. Newald said that he was already- on the list to receive agendas for planning commission and city council, but felt the planning commission was the primary place to discuss these things, not at city council . Mr. Diaz said that what he was recommending to the commission was that the matter go on to the city council because they have to act on it and the matter had been reviewed by the council. He clarified that he had asked for Mr. Newald' s name and address because he did not want to assume staff already had it and wanted to make sure he had the notice on this particular hearing. Mr. Newald still felt that the planning commission was the place to resolve the "nitty gritty" . 8 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 Chairman Spiegel said that because it came up for a particular development, it was decided that the city needed to establish a definition for fast food restaurants . This was the one that was handed back to the commission from city council . Mr. Smith indicated that it went to city council three times. He noted that on the last page of the staff report there was a state definition of fast food outlet, which came back to the primarily take out or to go basis . That was essentially where the city began in its discussion and then evolved as the city attorney, staff and council reviewed it. This was how it evolved up to this point, but it could evolve further. If commission had other direction for staff to look at they would entertain it. Commissioner Whitlock asked if the elimination of the last sentence would solve the concern expressed, specifically if this had come up to address that one corner. Mr. Smith said it might solve this gentleman's problem at the expense of the other people who spoke to council and got them to add that sentence in. Mr. Smith said there was no Domino' s Pizza proposed for that center at this time. Mr. Diaz stated that people that were just in the delivery business were not going to pay the higher rents to locate there. There was a Domino' s Pizza in town that delivered to the entire city. Since their business was not to attract people coming in off the street, they would locate where the rents were lower. As far as the to go category, one of the major speakers at the city council was a person who wanted to open up a chinese restaurant, which provided food to go. In terms of fairness, that was why it was put in. The developer knew what not to put in that center. Commissioner Jonathan asked if a condition that was implemented now could be applied retroactively to a prior condition. Mr. Hargreaves answered that if there was no definition on the books and it was subject to debate as to what the definition might have been, the definition at this point could be construed a clarification of what was already on the books. If it was clear that the definition somehow changed the substance of the statute, then there would be a kind of retroactivity. Commissioner Jonathan felt they were there to address the definition of a fast food restaurant, not to decide if a particular shopping center would have a Domino' s Pizza. That was an issue that would be addressed at another time. As far as a valid definition of a fast food restaurant, he saw no problem and would be prepared to moved for approval at the appropriate time. 9 r MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 Chairman Spiegel asked if anyone else wished to speak in favor or opposition to the proposal. There was no one and the public testimony was closed. Commissioner Whitlock said that she agreed with Commission Jonathan and would second . his motion. Commissioner Beaty also agreed. Chairman Spiegel said he did have a problem. There was a clear difference between a McDonald' s and . a Ruth's Chris and Domino's fell between the cracks. A chinese restaurant did not seem to do most of their business delivering, but with take out it was people picking it up. If 40% of their business was take out, so be it. He liked what Commissioner Whitlock said earlier to eliminate the last sentence that delivered food items should not be counted in the take out or to go category. He considered a Domino' s Pizza to be fast food. Commissioner Beaty asked if the intent was to prevent loitering and trash; Mr. Diaz felt that some of the people were trying to prevent certain types of customers. Commissioner Beaty said he had never seen anyone take out chinese food and throw the cartons on the ground, or pizza containers. With Domino 's the concern would be directed more toward the traffic and the cars racing in and out of the parking lot. Commissioner Jonathan stated that there was a distinction because Domino' s was a food delivery service, not a McDonald' s or Jack in the Box that was a fast food facility where people sit and eat there or take their food out. Domino' s manufactures food and delivers it and he did not consider them a fast food restaurant and did not belong in the fast food restaurant definition. Mr. Smith noted that when the condition was imposed, the concern was loitering--they did not want the wrong element loitering at the center. Chairman Spiegel indicated that was one reason the movie theater was withdrawn. Action: Moved by Commissioner Jonathan, seconded by Commissioner Whitlock, approving the findings as presented by staff. Carried 3-1 (Chairman Spiegel voted no) . Moved by Commissioner Jonathan, seconded by Commissioner Whitlock, adopting Planning Commission Resolution No. 1633, recommending approval of ZOA 93-2 to city council. Carried 3-1 (Chairman Spiegel voted no) . 10 CITY OF PALM DESERT DE. ATMENT OF COMMUNITY DEVELL _.ENT STAFF REPORT TO: Planning Commission DATE: December 7, 1993 CASE NO: ZOA 93-2 REQUEST: Consideration of an amendment to the zoning ordinance to establish a definition for "fast food restaurants" . APPLICANT: City of Palm Desert I. BACKGROUND: During the processing of the Desert Springs Marketplace shopping center at Country Club Drive and Cook Street a condition was placed on the precise plan that "fast food restaurants" not be permitted. II . ANALYSIS: "Fast food restaurants" are not presently defined , in the ordinance. Recently staff approached city council with a proposed definition which was revised slightly but generally endorsed. At that time staff was directed to process the definition as an amendment to the ordinance so as to codify "fast food restaurant" . It is proposed that a "fast food restaurant" be defined as follows : "A fast food restaurant is a restaurant that sells 2; - � food products primarily over a counter rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" •basis. Delivered food items shall not be counted in the "take-out" or "to go" category. " III . CEQA REVIEW: An amendment to a section of the zoning ordinance is a class 5 categorical exemption for the purposes of CEQA. No further documentation is necessary. IV. RECOMMENDATION: That case ZOA 93-2 adding a definition for a "fast food restaurant" be recommended for approval to the city council. STAFF REPORT ZOA 93-2 DECEMBER 7, 1993 V. ATTACHMENTS• A. Draft resolution. B. Legal notice. Prepared by Reviewed and Approved by' . SRS/tm 2 PLANNQG COMMISSION RESOLUTION N A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A ZONING ORDINANCE AMENDMENT TO ADD A DEFINITION OF "FAST FOOD RESTAURANT" . CASE NO. ZOA 93-2 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 7th day of December, 1993, hold a duly noticed public hearing to consider the amendment to the zoning ordinance as described above; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined the amendment to be a class 5 categorical exemption; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to . be heard, said planning commission did find the following facts and reasons to exist to recommend approval of the zoning ordinance text amendment: 1 . The proposed amendment to add a definition of "fast food restaurant" is consistent with the intent* of the zoning ordinance and protects the community health, safety and general welfare. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, as follows: 1 . That the above recitations are true and correct and constitute the findings of the commission in this case. 2 . That it does hereby recommend approval of ZOA 93-2 as provided in the attached exhibit labeled Exhibit "A" . PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 7th day of December, 1993, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT A. SPIEGEL, Chairman ATTEST: RAMON A. DIAZ, Secretary PLANNING COMMISSIOAESOLUTION NO. EXHIBIT "A" Section 1 That section 25 . 04 . 684 be added to define a fast food restaurant as follows : 25 . 04 .684 "Restaurant, fast food" Fast food restaurant is a restaurant that sells food products primarily over a counter rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least. 40% of its food products on a "take-out" or "to go" basis. Delivered food items shall not be counted in the "take out" or "to go" category. 2 C MEETIIADATE I liZ�q W CONTINUED TO rl CITY OF PALM D S RT O �� DEPARTMENT OF COMMUNITY EfflVVpFJ10RD READING TRANSMITTAL LEFTER I . TO: Honorable Mayor and City Council II. REQUEST: Determination of intent of conditions imposed by city council . III . FROM: Department of Community Development IV. DATE: August 26 ,Cig! 321 rJ,;C,y AC^_- APP1 -VZ.1 Dc: D V. CONTENTS: GT?'' — -;.Continued to 10/14/92 & dire ted the 'City Attorney to eau +�_ gassed- 1�ion of "fast food A. Staoff Recommenaationi.::_'^it::; _ B. Discussion C. Related exhibits A. STAFF RECOMMENDATION: �-'r. _._ ;, _; _c. wa. That city council advise staff as to its intent when it imposed a condition on the Carver project prohibiting "Fast Food Restaurants" . B. DISCUSSION: During the processing of the Carver project precise plan, there was considerable discussion regarding the "type of person" who would frequent this facility. Most of the discussion centered on the theaters which were ultimately deleted from the plan. However, "Fast Food Restaurants" were also an area of concern. As a result condition number 23 of Resolution No. 93-16 provides as follows : "That no fast food restaurant shall be permitted in this development. " Some time after the approval of the project the question came up, "What is a fast food restaurant?" . The zoning ordinance does not address the issue of "fast food restaurants" although it does define and prohibit "drive-thru" or "drive-up" restaurants . We next requested the city attorney to research the matter. His report dated June 8, 1993 is attached. "restaurants" so that food delivered by restaurants (i.e., Chinese and pizza)will not be cour against them when determining whether they qualify as "fast food restaurants" and also that th reference to "drive-thru" window rather than by waitress or waiter" be deleted since this use already prohibited in the City. CITY COUNCIL TRANSMITTAL LETTER AUGUST 26, 1993 Government Code defines "fast food outlet" as a "restaurant that sells food products primarily on a "take-out" or "to go" basis . Based on this definition and several cases , the city attorney drafted the following definition: "A "fast food restaurant" is a restaurant that sells food products primarily over a counter or drive-thru window rather than by waitress or waiter; packages its food in wrappers , boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . The question becomes whether this definition would meet the intent of city council when it imposed condition #23 . For instance we have been contacted by a chinese food restaurant which does business in other locations approximately 40% eat-in, 20% take out and 40% store delivery. This use was deemed to not comply with the drafted definition. Pizza delivery would also fail to pass muster. The question then becomes do we want to eliminate these types of uses or was the intent to prevent uses which encourage loitering. OPTIONS 1 . Proceed with the drafted definition and use it as a policy related to condition 423 . 2 . Use drafted definition and refer the matter to planning commission for hearing and ultimately a code amendment. 3 . Revise the drafted definition to better describe city council ' s intent when it imposed condition #23 and use it as policy, then process same as a code amendment. Prepared by: Reviewed and Approved by: SRS/tm 41ME M O R A N D U M TO: DJE FROM: JOP DATE: June 8, 1993 RE: CITY OF PALM DESERT DEFINITION OF "FAST FOOD" RESTAURANTS 72500.0001 DISCUSSION After conducting considerable research into this matter, I_ have determined that there is no clear definition of the term "fast food" restaurants in California case law. However, I was able to find some hopefully useful definitions in the Government Code. Specifically, Section 68055. 1(b) defines "drive-in restaurant" as a "restaurant that sells food products for immediate consumption on or near a location at which parking facilities are provided for the use of patrons in consuming the products purchased at the restaurant" . Section 68055. 1(c) defines a "fast food outlet" as a "restaurant that sells food products primarily on a "take-out" or "to go" basis. After reviewing these statutes and several cases discussing restaurants in general, I drafted the following definition: A "fast food restaurant" is a restaurant that sells food products primarily over a counter or drive-thru window rather than by waitress or waiter; packages its food in wrappers, JOP36935 -1- a boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis. This definition should be sufficiently specific to distinguish between typical full service restaurants and fast food restaurants. Should you require anything further please let me know. JOP36935 -2- Ch. 2 RECYCLING, RESOURCE RECOVERY, ETC. § 68055.1 Mstotteal Note Section 36 of Stau.1980, c. 364, P. 732, cause an abatement or affect any actions provided: taken pursuant to such provisions, and "The Legialature finds and declares that that such repeal and reenactmem except the repeal and reenactment, as amended, as expressly amended, is for convenience and repeal of the provisions of Chapter 2 and organization of the codes." (mmmencing with Section 68055) of Title Derivation: Health & S.C. former § 7.8 of the Government Code, effected by 24885, added by Stutsli)T7, c. 1161, P. Sections 7, 31, and 32 of this act, except 3780 § 4. an expressly amended herein, shall not constitute any change in existing law or. Ubrary Refexnees Health and Environment eo25.5(5). C.J.S. Health and Environment §§ 91 et asp..106 at seq.,13L § 68055.1. Definitions Unless the context otherwise requires, the definitions as set forth in this section govern the construction of this chapter. (a) "PubUc place" means any area that is used or held out for the use of the public whether owned and operated by public or pri- vate interests, but not including indoor areas. "Indoor area" means any enclosed area covered with a roof and protected from moisture and wind. (b) "Drive-in restaurant" means a restaurant that sells food Products for immediate consumption on or near a location at which parking facilities are provided for the use of patrons in ing the-produ p at a restaurant. (c) "Fast food outlet" means aFis taurant that sells food prod- acts primarily on a "takeout" or "to basis. (d) "Grocery stores" includes, not limited markets t se groceries. (e) "Shopping centers" means a group of two or more stores that maintain a common parking lot for patrons of those stores. (f) "Board" means the State Solid Waste Management Board. (g) "Litter" means all improperly discarded waste material, in- cluding, but.not limited to, convenience food, beverage, and other product packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the state, but not including the properly discarded waste of the primary processing of agriculture, alining,logging,sawmilling, or manufacturing. (h) "Solid waste" means all putrescible and nonputrescible solid, semisolid, and liquid wastes. (Added by Stats.1980, c. 364, p. 730, § 31, eff. July 9, 1980. Amended by Stats.1982, c. 1054, § 6, urgency, eff. Sept: 16, 1982.) 677 i 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE (619)346-0611 FAX(619)341-7098 December 22, 1993 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 93-2 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider an amendment to the zoning ordinance to add to Section 25 . 04 a definition for "restaurant, fast food" . SAID public hearing will be held on Thursday, January 13, 1994 before the Palm Desert City Council at 7 : 00 p.m. in the Council Chamber at the Palm Desert City Hall, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the city council at, or prior to, the public hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk December 29 , 1993 City of Palm Desert, California co flMycleJ Paper MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 Chairman Spiegel noted that there was concern on the part of the residents . Mr. Winklepleck concurred. He indicated that letters had been received and he had spoken to approximately 30 people about it. Chairman Spiegel said that he assumed the developer between now and the January 4 meeting would attempt to get together with the people that live there. Mr. Winklepleck said that was staff' s suggestion to him that he request a continuance to speak with the homeowners associations to clarify as many things as possible. Chairman Spiegel asked for a motion to continue. Action: Moved by Commissioner Whitlock, seconded by Commissioner Beaty, to continue TT 27698 to January 4, 1994 by minute motion. Carried 4-0 . OC Case No. ZOA 93-2 - CITY OF PALM DESERT, Applicant Request for consideration of an amendment to the zoning ordinance to establish a definition for "fast food restaurants" . Mr. Smith explained that during the processing of the commercial complex known as Desert Springs Marketplace at Country Club and Cook Street, a condition was placed that there would not be any fast food restaurants . The city did not have a definition of fast food restaurant so that was what was being done now. He read the definition and explained that when staff started having questions coming up as to what a fast food restaurant was, staff went to council and asked them their intent; they said to come back with a definition and this was what they came up with. Staff recommended that planning commission recommend approval of the definition to city council and codify the definition for fast food restaurants. Chairman Spiegel noted that the last sentence said delivered food items would not be counted in the take out or to go category. He indicated that Domino's Pizza would not be considered fast food because they deliver most of their food; Mr. Smith said that was correct. The question was raised because of a chinese restaurant that wanted to locate in the center. Mr. Diaz felt the concern with the shopping center wasn' t the type of people the food was delivered to, but the type of people who might go and get the food. Mr. Smith said 7 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 the city did not want a loitering problem. Chairman Spiegel questioned the ability of staff to monitor restaurants for the 40% requirement. Chairman Spiegel opened the public testimony and asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal . MR. LEONARD NIEWALD, a resident of Desert Falls Country Club, said he thought the definition of fast foods was resolved by city council . Chairman Spiegel indicated this was the definition that was resolved, but it had to go through the planning commission and then back to council . This definition was exactly what was resolved by city council. Mr. Niewald said it was not quite the way he understood it and objected to a Domino's in that center--he felt fast food was where there were no waitresses there to serve customers. He felt more study was needed on the definition. Mr. Diaz stated that this matter would be before the city council because it was a zoning ordinance amendment and if Mr. Niewald provided his address, staff would see to it that he received notice of the council meeting. A definition was needed if the city was going to disallow fast food restaurants. The particular issues raised warranted some study and would be reviewed between now and the council meeting. Mr. Niewald said that he was already on the list to receive agendas for planning commission and city council, but felt the planning commission was the primary place to discuss these things, not at city council. Mr. Diaz said that what he was recommending to the commission was that the matter go on to the city council because they have to act on it and the matter had been reviewed by the council . He clarified that he had asked for Mr. Niewald' s name and address because he did not want to assume staff already had it and wanted to make sure he had the notice on this particular hearing. Mr. Niewald still felt that the planning commission was the place to resolve the "nitty gritty" . 8 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 Chairman Spiegel said that because it came up for a particular development, it was decided that the city needed to establish a definition for fast food restaurants . This was the one that was handed back to the commission from city council . Mr. Smith indicated that it went to city council three times . He noted that on the last page of the staff report there was a state definition of fast food outlet, which came back to the primarily take out or to go basis . That was essentially where the city began in its discussion and then evolved as the city attorney, staff and council reviewed it. This was how it evolved up to this point, but it could evolve further. If commission had other direction for staff to look at they would entertain it. Commissioner Whitlock asked if the elimination of the last sentence would solve the concern expressed, specifically if this had come up to address that one corner. Mr. Smith said it might solve this gentleman's problem at the expense of the other people who spoke to council and got them to add that sentence in. Mr. Smith said there was no Domino' s Pizza proposed for that center at this time. Mr. Diaz stated that people that were just in the delivery business were not going to pay the higher rents to locate there. There was a Domino' s Pizza in town that delivered to the entire city. Since their business was not to attract people coming in off the street, they would locate where the rents were lower. As far as the to go category, one of the major speakers at the city council was a person who wanted to open up a chinese restaurant, which provided food to go. In terms of fairness, that was why it was put in. The developer knew what not to put in that center. Commissioner Jonathan asked if a condition that was implemented now could be applied retroactively to a prior condition. Mr. Hargreaves answered that if there was no definition on the books and it was subject to debate as to what the definition might have been, the definition at this point could be construed a clarification of what was already on the books . If it was clear that the definition somehow changed the substance of 'the statute, then there would be a kind of retroactivity. Commissioner Jonathan felt they were there to address the definition of a fast food restaurant, not to decide if a particular shopping center would have a Domino' s Pizza. That was an issue that would be addressed at another time. As far as a valid definition of a fast food restaurant, he saw no problem and would be prepared to moved for approval at the appropriate time. 9 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1993 Chairman Spiegel asked if anyone else wished to speak in favor or opposition to the proposal . There was no one and the public testimony was closed. Commissioner Whitlock said that she agreed with Commission Jonathan and would second his motion. Commissioner Beaty also agreed. Chairman Spiegel said he did have a problem. There was a clear difference between a McDonald' s and a Ruth's Chris and Domino's fell between the cracks . A chinese restaurant did not seem to do most of their business delivering, but with take out it was people picking it up. If 40% of their business was take out, so be it. He liked what Commissioner Whitlock said earlier to eliminate the last sentence that delivered food items should not be counted in the take out or to go category. He considered a Domino' s Pizza to be fast food. Commissioner Beaty asked if the intent was to prevent loitering and trash; Mr. Diaz felt that some of the people were trying to prevent certain types of customers . Commissioner Beaty said he had never seen anyone take out chinese food and throw the cartons on the ground, or pizza containers . With Domino ' s the concern would be directed more toward the traffic and the cars racing in and out of the parking lot. Commissioner Jonathan stated that there was a distinction because Domino' s was a food delivery service, not a McDonald's or Jack in the Box that was a fast food facility where people sit and eat there or take their food out. Domino' s manufactures food and delivers it and he did not consider them a fast food restaurant and did not belong in the fast food restaurant definition. Mr. Smith noted that when the condition was imposed, the concern was loitering--they did not want the wrong element loitering at the center. Chairman Spiegel indicated that was one reason the movie theater was withdrawn. Action: Moved by Commissioner Jonathan, seconded by Commissioner Whitlock, approving the findings as presented by staff. Carried 3-1 (Chairman Spiegel voted no) . Moved by Commissioner Jonathan, seconded by Commissioner Whitlock, adopting Planning Commission Resolution No. 1633, recommending approval of ZOA 93-2 to city council . Carried 3-1 (Chairman Spiegel voted no) . 10 CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commission DATE: December 7, 1993 CASE NO: ZOA 93-2 REQUEST: Consideration of an amendment to the zoning ordinance to establish a definition for "fast food restaurants" . APPLICANT: City of Palm Desert I . BACKGROUND: During the processing of the Desert Springs Marketplace shopping center at Country Club Drive and Cook Street a condition was placed on the precise plan that "fast food restaurants" not be permitted. II . ANALYSIS: "Fast food restaurants" are not presently defined in the ordinance. Recently staff approached city council with a proposed definition which was revised slightly but generally endorsed. At that time staff was directed to process the definition as an amendment to the ordinance so as to codify "fast food restaurant" . It is proposed that a "fast food restaurant" be defined as follows : "A fast food restaurant is a restaurant that sells food products primarily over a counter rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . Delivered food items shall not be counted in the "take-out" or "to go" category. " III . CEQA REVIEW: An amendment to a section of the zoning ordinance is a class 5 categorical exemption for the purposes of CEQA. No further documentation is necessary. IV. RECOMMENDATION: That case ZOA 93-2 adding a definition for a "fast food restaurant" be recommended for approval to the city council . STAFF REPORT ZOA 93-2 DECEMBER 7, 1993 V. ATTACHMENTS : A. Draft resolution. B. Legal notice. Prepared by Reviewed and Approved by SRS/tm 2 PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A ZONING ORDINANCE AMENDMENT TO ADD A DEFINITION OF "FAST FOOD RESTAURANT" . CASE NO. ZOA 93-2 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 7th day of December, 1993, hold a duly noticed public hearing to consider the amendment to the zoning ordinance as described above; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89 , " in that the director of community development has determined the amendment to be a class 5 categorical exemption; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said planning commission did find the following facts and reasons to exist to recommend approval of the zoning ordinance text amendment: 1 . The proposed amendment to add a definition of "fast food restaurant" is consistent with the intent of the zoning ordinance and protects the community health, safety and general welfare. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, as follows : 1 . That the above recitations are true and correct and constitute the findings of the commission in this case. 2 . That it does hereby recommend approval of ZOA 93-2 as provided in the attached exhibit labeled Exhibit "A" . PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this '7th day of December, 1993, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: ROBERT A. SPIEGEL, Chairman RAMON A. DIAZ, Secretary PLANNING COMMISSION RESOLUTION NO. EXHIBIT "A" Section 1 That section 25 . 04 . 684 be added to define a fast food restaurant as follows : 25 . 04 . 684 "Restaurant, fast food" Fast food restaurant is a restaurant that sells food products primarily over a counter rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . Delivered food items shall not be counted in the "take out" or "to go" category. 2 73.510 FRED WARING DRIVE, PALM DESERT. CALIFORNIA 92260 TELEPHONE(619)346-0611 FAX(619)340-0574 November 12, 1993 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 93-2 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider an amendment to the zoning ordinance to add to Section 25.04 a definition for "restaurant, fast food". SAID public hearing will be held on Tuesday, December 7, 1993 before the Palm Desert Planning Commission at 7:00 p.m. in the Council Chamber at the Palm Desert City Hall, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 17, 1993 Palm Desert Planning Commission MEETING DATE CITY OF PALM D SERTCONTINUEDTO � Ia3�GI � DEPARTMENT OF COMMUNIT 1 7VWFJUM-D READING TRANSMITTAL LErTER I . TO: Honorable Mayor and City Council II . REQUEST: Determination of intent of conditions imposed by city council . III . FROM: Department of Community Development IV. DATE: August 26,C3993;,,U1'1TC1- ACTION: * V. CONTENTS: IED OT.=EIR Continued to 10/14/93 r V & e ted the "Cit Attorney._ta._rBwr-te_the rognsed._de anition of "fast food A. Staofi Recomme iaatloni.-.: ogo. B. Discussion A_L;; ; n---C. Related exhibits il•. _" —! Le):� � Q/� 4 ...: :.. ... ----- .. A. STAFF RECOMMENDATION: r-_ .l. =11� Wi• - - J _ That city council advise staff as to its intent when it imposed a condition on the Carver project prohibiting "Fast Food Restaurants" . B. DISCUSSION: During the processing of the Carver project precise plan, there was considerable discussion regarding the "type of person" who would frequent this facility. Most of the discussion centered on the theaters which were ultimately deleted from the plan. However, "Fast Food Restaurants" were also an area of concern. As a result condition number 23 of Resolution No. 93-16 provides as follows : "That no fast food restaurant shall be permitted in this development. " Some time after the approval of the project the question came up, "What is a fast food restaurant?" . The zoning ordinance does not address the issue of "fast food restaurants" although it does define and prohibit "drive-thru" or "drive-up" restaurants . We next requested the city attorney to research the matter. His report dated June 8, 1993 is attached. "restaurants" so that food delivered by restaurants (i.e. , Chinese and pizza)will not be count( against them when determining whether they qualify as "fast food restaurants" and also that the reference to "drive-thru" window rather than by waitress or waiter" be deleted since this use is already prohibited in the City. CITY COUNCIL TRANSMITTAL LETTER AUGUST 26 , 1993 Government Code defines "fast food outlet" as a "restaurant that sells food products primarily on a "take-out" or "to go" basis . Based on this definition and several cases , the city attorney drafted the following definition: "A "fast food restaurant" is a restaurant that sells food products primarily over a counter or drive-thru window rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . The question becomes whether this definition would meet the intent of city council when it imposed condition #23 . For instance we have been contacted by a chinese food restaurant which does business in other locations approximately 40% eat-in, 20% take out and 40% store delivery. This use was deemed to not comply with the drafted definition. Pizza delivery would also fail to pass muster. The question then becomes do we want to eliminate these types of uses or was the intent to prevent uses which encourage loitering. OPTIONS 1 . Proceed with the drafted definition and use it as a policy related to condition #23 . 2 . Use drafted definition and refer the matter to planning commission for hearing and ultimately a code amendment. 3 . Revise the drafted definition to better describe city council ' s intent when it imposed condition #23 and use it as policy, then process same as a code amendment. Prepared by: Reviewed and Approved by: �_ l SRS/tm - o M E M O R A N D U M TO: WE FROM: JOP DATE: June 8, 1993 RE: CITY OF PALM DESERT DEFINITION OF "FAST FOOD" RESTAURANTS 72500. 0001 DISCUSSION After conducting considerable research into this matter, I have determined that there is no clear definition of the term "fast food" restaurants in California case law. However, I was able to find some hopefully useful definitions in the Government Code. Specifically, Section 68055. 1 (b) defines "drive-in restaurant" as a "restaurant that sells food products for immediate consumption on or near a location at which parking facilities are provided for the use of patrons in consuming the products purchased at the restaurant" . Section 68055. 1(c) defines a "fast food outlet" as a "restaurant that sells food products primarily on a "take-out" or "to go" basis. After reviewing these statutes and several cases discussing restaurants in general, I drafted the following definition: A "fast food restaurant" is a restaurant that sells food products primarily over a counter or drive-thru window rather than by waitress or waiter; packages its food in wrappers, JOP36935 -1- boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis. This definition should be sufficiently specific to distinguish between typical full service restaurants and fast food restaurants. Should you require anything further please let me know. JOP36935 -2- Ch. 2 RECYCLING, RESOURCE RECOVERY, ETC. § 68055.1 Historical Note Section 86 of Stats.1980, c. 364, p. 732, cause an abatement or affect any actions provided: taken pursuant to such provisions, and "The Legislature finds and declares that that such repeal and reenactment, except the repeal and reenactment, as emended, as expressly amended, is for convenience and repeal of the provisions of Chapter 2 and organization of the codes." (commencing with Section 68055) of Title Derivation: Health & S.C. former § 7.8 of the Government Code, effected by 24385 added by Stats.1977, c. 1161, p. Sections 7, 31, and32 of this act, except 3780, ¢ 4. as expressly amended herein, shall not constitute any change in existing law or Library Reference" Health and Environment 4=25.5(5). C.J.S. Health and Environment ii 91 et seq.,106 at seq.,131. § 68055.1. Definitions Unless the context otherwise requires, the definitions as set forth in this section govern the construction of this chapter. (a) "Public place" means any area that is used or held out for the use of the public whether owned and operated by public or pri- vate interests, but not including indoor areas. "Indoor area" means any enclosed area covered with a roof and protected from moisture and wind. (b) "Drive-in restaurant" means a restaurant that sells food products for immediate consumption on or near a location at which parking facilities are provided for the use of patrons in consuming the products purchased at the restaurant. (c) "Fast food outlet" means a restaurant that sells food prod- . ucts primarily on a "takeout" or "to go" basis. (d) "Grocery stores" includes, but is not limited to, convenience markets that sell groceries. (e) "Shopping centers" means a group of two or more stores that maintain a common parking lot for patrons of those stores. (f) "Board" means the State Solid Waste Management Board. (g) "Litter" means all improperly discarded waste material, in- cluding, but not limited to, convenience food, beverage, and other product packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the state, but not including the Properly discarded waste of the primary processing of agriculture, mining,logging,sawmilling, or manufacturing. (h) "Solid waste" means all putrescible and nonputrescible solid, semisolid, and liquid wastes. (Added by Stats.1980, c. 364, p. 730, § 31, eff. July 9, .1980. Amended by Stats.1982, C. 1054, § 6, urgency, eff. Sept. 15, 1982.) 677 PROOF OF PUBLICATION This space is for (2015.5 C.C.P) the County Clerk's Stamp Proof of Publication of: R-18316 Case: LEGAL NOTICE File: ZOA 93-2 r� c C­:) CD `..; - r1 n 3 t'1 O a > N m ry CITY OF PALM DESERT STATE OF CALIFORNIA, LEGAL NOTICE County of Riverside, I i CASE NO.:ZOA 93-2 �INOTICE IS HEREBY GIVEN that a public hearing will am a citizen of the United be held before the Palm Desert Planning Commission 'I to consider an amendmentto the zoning ordinance to States and a resident of the add to Section 25.04 a definition for"restaurant,fast County aforesaid; I am over food". the age of eighteen pears, SAID public hearing will be held on Tuesday, December 71 1993,before the Palm Desert Planning and not a party to or interested Commission at 7100 p.m.in the Council Chamber at in the above-entitled matter. I the Palm Desert City Holl 73-510 Fred Waring Drive, Palm Desert,California,at which time and place all am the principal clerk of the interested persons are invited to attend and be heard. glints[ of the Desert Post, i Written comments concerning all items covered by this public hearing notice shall be accepted up to the date a newspaper of general circulation, of the hearing.Information concerning the proposed printed and published weekly in the project and/or negative declaration is available for reviewinthe departmentof community development/ City of Palm Desert, County of planning at the above address between the hours of Riverside, and which newspaper 8:00 a.m.and 5:00 p.m.Monday through Friday.If yyou challenge the proposed actions in court,you y has been adiudged a newspaper of be limited to raising only those issues you or someone general circulation by the $ppeC10C else raised at the public hearing described in this notice,or in written correspondence delivered r to rior to, Court of the County of Riverside. planning commission(or city council)at, p State of California. under the date the public hearing. /s/ RAMON A. DIAZ,Secretary of October 5, 1964, Case Number 83658: Palm Desert Planning Commission 18316(PUB NOV 17 1993) that the notice. of which the annexed — is a Printed copy (set in type not- smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following date to-wit: 11/17/93 1 certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Palm Desert, California, this //////�����yy1..�� ,7/93 1/..IP1l!.� (signed) 73510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260 TELEPHONE (619)346-0611 FAX(619) 340-0574 November 12, 1993 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 93-2 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider an amendment to the zoning ordinance to add to Section 25 . 04 a definition for "restaurant, fast food" . SAID public hearing will be held on Tuesday, December 7, 1993 before the Palm Desert Planning Commission at 7 :00 p.m. in the Council Chamber at the Palm Desert City Hall, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 17, 1993 Palm Desert Planning Commission CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commission DATE: December 7, 1993 CASE NO: ZOA 93-2 REQUEST: Consideration of an amendment to the zoning ordinance to establish a definition for "fast food restaurants" . APPLICANT: City of Palm Desert I . BACKGROUND: During the processing of the Desert Springs Marketplace shopping center at Country Club Drive and Cook Street a condition was placed on the precise plan that "fast food restaurants" not be permitted. II . ANALYSIS: "Fast food restaurants" are not presently defined in the ordinance. Recently staff approached city council with a proposed definition which was revised slightly but generally endorsed. At that time staff was directed to process the definition as an amendment to the ordinance so as to codify "fast food restaurant" . It is proposed that a "fast food restaurant" be defined as follows: "A fast food restaurant is a restaurant that sells food products primarily over a counter rather than . by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis. Delivered food items shall not be counted in the "take-out" or "to go" category. " III . CEQA REVIEW: An amendment to a section of the zoning ordinance is a class 5 categorical exemption for the purposes of CEQA. No further documentation is necessary. IV. RECOMMENDATION: That case ZOA 93-2 adding a definition for a "fast food restaurant" be recommended for approval to the city council . e : STAFF REPORT ZOA 93-2 DECEMBER 7, 1993 V. ATTACHMENTS• A. Draft resolution. B. Legal notice. Prepared by /� U Reviewed and Approved by SRS/tm 2 PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A ZONING ORDINANCE AMENDMENT TO ADD A DEFINITION OF "FAST FOOD RESTAURANT" . CASE NO. ZOA 93-2 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 7th day of December, 1993, hold a duly noticed public hearing to consider the amendment to the zoning ordinance as described above; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined the amendment to be a class 5 categorical exemption; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said planning commission did find the following facts and reasons to exist to recommend approval of the zoning ordinance text amendment: 1 . The proposed amendment to add a definition of "fast food restaurant" is consistent with the intent of the zoning ordinance and protects the community health, safety and general welfare.. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, as follows : 1 . That the above recitations are true and correct and constitute the findings of the commission in this case. 2 . That it does hereby recommend approval of ZOA 93-2 as provided in the attached exhibit labeled Exhibit "A" . PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 7th day of December, 1993, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT A. SPIEGEL, Chairman ATTEST: RAMON A. DIAZ, Secretary e PLANNING COMMISSION RESOLUTION NO. EXHIBIT "A" Section 1 That section 25 .04 . 684 be added to define a fast food restaurant as follows : 25 . 04 . 684 "Restaurant, fast food" Fast food restaurant is a restaurant that sells food products primarily over a counter rather than by waitress or waiter; packages its food in wrappers, boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis . Delivered food items shall not be counted in the "take out" or "to go" category. 2 C-hw 1D4 F('Oa u 4 73510 FRED WARING DRIVE. PALM DESERT. CALIFORNIA 92260 r TELEPHONE(619)346-0611 FAX(619)340-0574 November 12, 1993 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 93-2 - NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider an amendment to the zoning ordinance to add to Section 25.04 a definition for "restaurant, fast food". SAID public hearing will be held on Tuesday, December 7, 1993 before the Palm Desert Planning Commission at 7:00 -p.m. in the Council Chamber at the Palm Desert City Hall, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission -(or city council) at, or, prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 17, 1993 Palm Desert Planning Commission C � MEETING DATE a lR �A` / r'� 2rCONTINUEDTO f Ian`9 �/ ( CITY OF PALM DESERT RT DEPARTMENT OF COMMUNIT )MVPA M-D READING TRANSMITTAL L ER I . TO: Honorable Mayor and City Council II. REQUEST: Determination of intent of conditions imposed by city council . III . FROM: Department of Community Development IV. DATE: August 26 ,C39931- ;:.i1,TCIL ACTION: P apc ;y 1 r V. CONTENTS: % OT .Continued to 10/14/93 r & dire the Cit attOrneg. to- remr;ra,.the o��finition of "fast food A. Sta�fY RecommeidatlI ,;. LJ B. Discussion A__*"; ; C. Related exhibits A. STAFF RECOMMENDATION: That city council advise staff as to its intent when it imposed a condition on the Carver project prohibiting "Fast Food Restaurants" . B. DISCUSSION: During the processing of the Carver project precise plan, there was considerable discussion regarding the "type of person" who would frequent this facility. Most of the discussion centered on the theaters which were ultimately deleted from the plan. However, "Fast Food Restaurants" were also an area of concern. As a result condition number 23 of Resolution No. 93-16 provides as follows : "That no fast food restaurant shall be permitted in this development. " Some time after the approval of the project the question came up, "What is a fast food restaurant?" . The zoning ordinance does not address the issue of "fast food restaurants" although it does define and prohibit "drive-thru" or "drive-up" restaurants . We next requested the city attorney to research the matter. His report dated June 8, 1993 is attached. **restaurants" so that food delivered by restaurants (i.e., Chinese and pizza)will not be count( against them when determining whether they qualify as "fast food restaurants" and also that the reference to "drive-thru" window rather than by waitress or waiter" be deleted since this use is already prohibited in the City. CITY COUNCIL TRANSMITTAL LETTER AUGUST 26 , 1993 Government Code defines "fast food outlet" as a "restaurant that sells food products primarily on a "take-out" or "to go" basis . Based on this definition and several cases, the city attorney drafted the following definition: "A "fast food restaurant" is a restaurant that sells food products primarily over a counter or drive-thru window rather than by waitress or waiter; packages its food in wrappers , boxes or cartons regardless of whether the food is consumed on or off the restaurant premises ; and sells at least 40% of its food products on a "take-out" or "to go" basis . The question becomes whether this definition would meet the intent of city council when it imposed condition #23 . For instance we have been contacted by a chinese food restaurant which does business in other locations approximately 40% eat-in, 20% take out and 40% store delivery. This use was deemed to not comply with the drafted definition. Pizza delivery would also fail to pass muster. The question then becomes do we want to eliminate these types of uses or was the intent to prevent uses which encourage loitering. OPTIONS 1 . Proceed with the drafted definition and use it as a policy related to condition #23 . 2 . Use drafted definition and refer the matter to planning commission for hearing and ultimately a code amendment. 3 . Revise the drafted definition to better describe city council ' s intent when it imposed condition #23 and use it as policy, then process same as a code amendment . Prepared by: Reviewed and Approved by: �_ 1 SRS/tm / �n 4 •C M E M O R A N D U M TO: DJE FROM: JOP DATE: June 8, 1993 RE: CITY OF PALM DESERT DEFINITION OF "FAST FOOD" RESTAURANTS 72500. 0001 . DISCUSSION After conducting considerable research into this matter, I have determined that there is no clear definition of the term "fast food" restaurants in California case law. However, I was able to find some hopefully useful definitions in the Government Code. Specifically, Section 68055. 1(b) defines "drive-in restaurant" as a "restaurant that sells food products for immediate consumption on or near a location at which parking facilities are provided for the use of patrons in consuming the products purchased at the restaurant" . Section 68055. 1(c) defines a "fast food outlet" as a "restaurant that sells food products primarily on a "take-out" or "to go" basis. After reviewing these statutes and several cases discussing restaurants in general, I drafted the following definition: A "fast food restaurant" is a restaurant that sells food products primarily over a counter or drive-thru window rather than by waitress or waiter; packages its food in wrappers, JOP36935 -1- boxes or cartons regardless of whether the food is consumed on or off the restaurant premises; and sells at least 40% of its food products on a "take-out" or "to go" basis. This definition should be sufficiently specific to distinguish between typical full service restaurants and fast food restaurants. Should you require anything further please let me know. JOP36935 -2- Ch. 2 RECYCLING, RESOURCE RECOVERY, ETC. § 68055.1 Historical Note Section S6 of Stats.1980, c. 864, p. 732, cause an abatement or affect any actions provided: taken pursuant to such provisions, and "The Legislature Linde and declares that that such repeal and reenactment, except the repeal and reenactment, as amended, as expressly amended, is for convenience and repeal of the provisions of Chapter 2 and organisation of the codes." (commencing with Section 68065) of Title Derivation: Health & S.C. former 1 7.8 of the Government Code, effected by 24385 added by State.1977, c. 1161. p. Sections 7, 31, and 32 of this act, except 3780,1 4. as expressly amended herein, shall not constitute my change in existing law or Library References Health and Environment Q w25.5(5). C.J.S. Health and Environment it 91 at seq.,106 at seq., 131. § 68055.1. Definitions Unless the context otherwise requires, the definitions as set forth in this section govern the construction of this chapter. (a) "Public place" means any area that is used or held out for the use of the public whether owned and operated by public or pri- vate interests, but not including indoor areas. "Indoor area" means any enclosed area covered with a roof and protected from moisture and wind. (b) "Drive-in restaurant" means a restaurant that sells food products for immediate consumption on or near a location at which parking facilities are provided for the use of patrons in c nsuming the-plroduc s purch�e at the restaurant. / (c) "Fast food outlet" means a restaurant that sells food prod- ucts primarily on a "takeout" or "to go" basis. (d) "Grocery stores" includes, but is not limited markets t se groceries. ' (e) "Shopping centers" means a group of two or more stores that maintain a common parking lot for patrons of those stores. (f) "Board" means the State Solid Waste Management Board. (g) "Litter" means all improperly discarded waste material, in- cluding, but not limited to, convenience food, beverage, and other product packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the state, but not including the properly discarded waste of the primary processing of agriculture, mining,logging,sawmilling,or manufacturing. (h) "Solid waste" means all putrescible and nonputrescible solid, semisolid, and liquid wastes. (Added by Stats.1980, c. 364, p. 730, § 31, eff. July 9, 1980. Amended by Stats.1982, c. 1054, § 6, urgency, eff. Septa 15, 1982.) 677